PABON v. THE STATE OF NEW YORK, #2006-030-029, Claim No. 107525

Synopsis

Pro se inmate’s claim alleging medical malpractice, negligence and
ministerial neglect dismissed for failure to prove a prima facie case. No
medical evidence on medical issues. Did not establish that he received
unnecessary surgery to his cervical spine in the absence of informed consent per
Public Health Law §2805-d

Case Information

UID:

2006-030-029

Claimant(s):

WILLIAM PABON

Claimant short
name:

PABON

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

107525

Motion number(s):

Cross-motion
number(s):

Judge:

THOMAS H. SCUCCIMARRA

Claimant’s
attorney:

WILLIAM PABON, PRO SE

Defendant’s
attorney:

HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL

Third-party
defendant’s attorney:

Signature date:

October 25, 2006

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

.

Decision

William Pabon alleges in his Claim that Defendant’s agents at Green
Haven Correctional Facility failed to provide him with adequate medical care
while he was an inmate in their custody. Trial of the matter was held at Sing
Sing Correctional Facility on August 25, 2006. More specifically, Claimant
appears to be asserting that he underwent unnecessary surgery to his cervical
spine, or was operated on in the absence of informed consent, the repercussions
of which he continues to suffer to this day. Claimant testified that “in
1996 he saw Dr. Galeno for the first time at Sing Sing,” with regard to
“severe numbness and pain” in his left side. The doctor told him
that he “had herniated discs and bone spurs” among other things, and
they would need to “take out infusions.” Claimant said he
“asked for thirty days to think about it,” returning to Dr. Galeno
in or about August 2000 and agreeing to the operation. In the interim, medical
personnel at the correctional facility “discovered . . . [Claimant] had
some kind of tumor in . . . [his] head and delayed the operation.”
Claimant testified that “sometime in 1999 Dr. Galeno did the same
operation on a friend he would have done on . . . [Claimant. Claimant’s
friend] had his whole left side go numb, and had bone spurs in his neck. Galeno
went in and did a nice little incision, plugged out the bone fragments, and . .
. [Claimant’s] friend was brand new.” When Claimant was
cleared for surgery, he told Galeno “Listen, I don’t want none of
that fusion . . . can’t you just go in there and take out these little
fragments?” Galeno said “all right.” Claimant was “put
under at St. Agnes” for his surgery, and when he “woke up” he
was in “excruciating pain. The pain medication they were giving . . .
[him] wasn’t holding it.” When he returned to the facility,
Claimant stated that he “still didn’t realize the full extent of the
damage to . . . [his] neck.” At the facility, they “took an
x-ray.” Claimant said “they took all the vertebraes off my
neck.” The Court was asked to observe a scar some 6 to 10 inches long on
the back of Mr. Pabon’s neck. Claimant said the pain continued then, and
continues to this day. He was told that because they had “taken so much
vertebrae the neck was unstable, and they needed to put something in to
stabilize it.” Claimant was told that they would “put in just one
little rod to stabilize the neck.” In or about 2001, Claimant said,
the rod was put in. Thereafter, Claimant “saw in an x-ray that 2 rods, 6
or 7 inches long, were placed on either side of . . . [his] neck, with wires and
screws all over the place.” Mr. Pabon said it continued to hurt. After
the second surgery, he saw a Dr. Weinstein because “they tore . . . [his]
rotator cuff when they were performing the second operation.” When he
came back from this second surgery, not only was his neck hurting, but his
shoulder was too. The “only surgeon they let . . . [him] see is
Galeno.” Claimant testified that Galeno kept calling his problem a
herniated disc, yet State physicians declared, in affidavits submitted in
support of a summary judgment motion in connection with a federal lawsuit
brought by Claimant, “that at no time was there a diagnosis of herniated
disc.” Claimant submitted the physician’s affidavits used by the
State in connection with its successful motion for summary judgment in federal
Court

, as well as an opinion letter dated February 2, 2002 from a neurologist
directed to the Assistant Attorney General who appeared in the federal case, and
a Memorandum of Law submitted by the Assistant Attorney General on the summary
judgment motion. [See Exhibits 1, 2, 3]. Claimant argued that in
the affidavit submitted by the medical director, Dr. Koenigsman indicates that
the neurosurgeon “recommended” in February 19, 1999 that there was
no surgical indication, and that conservative therapy should continue, yet
thereafter he had two cervical spine surgeries, in November 2000 and August
2001. [See Exhibit 1]. When Dr. Galeno did the first operation,
Claimant argued, the doctor knew that it was one of two steps in a two step
surgical procedure, according to the information Claimant researched, yet he
did not let Claimant know. Claimant maintained that he is currently
scheduled for surgery, and he’s afraid that Dr. Galeno, “the butcher
who cut him up in the first place,” will be the one to perform the
surgery. No other witnesses testified and no other evidence was
submitted. It is “fundamental law that the State has a duty to
provide reasonable and adequate medical care to the inmates of its
prisons,” including proper diagnosis and treatment. Rivers v State of
New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701
(1990). In a medical malpractice claim, the Claimant has the burden of proof
and must prove (1) a deviation or departure from accepted practice and (2)
evidence that such deviation was the proximate cause of the injury or other
damage. A cause of action is premised in medical malpractice when it is the
medical treatment, or the lack of it, that is in issue. A Claimant must
establish that the medical caregiver either did not possess or did not use
reasonable care or best judgment in applying the knowledge and skill ordinarily
possessed by practitioners in the field. The “ ‘claimant must
[demonstrate] . . . that the physician deviated from accepted medical practice
and that the alleged deviation proximately caused his . . . injuries’
(Parker v State of New York , 242 AD2d 785, 786).” Auger v State
of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof,
no viable claim giving rise to liability on the part of the State can be
sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv
denied 40 NY2d 804 (1976). A medical expert’s testimony is necessary
to establish, at a minimum, the standard of care. Spensieri v Lasky, 94
NY2d 231 (1999). If a claim can be read to allege simple negligence, or
medical negligence, then the alleged negligent omissions or acts by the
State’s employees can be readily determined by a fact finder using common
knowledge without the necessity of expert testimony. Coursen v New York
University Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986).
Similarly, the State may be found liable for ministerial neglect if its
employees fail to comply with an institution’s own administrative
procedures and protocols for dispensing medical care to inmates. Kagan v
State of New York, 221 AD2d 7, 10 (2d Dept 1996). In this case, only
the testimony of the Claimant has been presented in support of any claim of
malpractice. No competent medical evidence was presented, through a treating
physician or an expert witness whose opinion was based upon the available
medical records, to support the allegation of medical malpractice. There is no
medical evidence on any medical issue, except for the physicians’
affidavits submitted by the State in the Claimant’s federal lawsuit, and
the opinion letter furnished to the Attorney General in that case, all reciting
the progression of treatment from conservative to more invasive, but all
attesting to the adequacy of the care Claimant received. [See Exhibits 1,
2]. Thus, there is no proof that accepted standards of care were not met.
Accordingly, the claim of medical malpractice must be dismissed. With regard
to the aspect of the claim that appears to be asserting that claimant was
treated in the absence of informed consent, the factors necessary to sustain
such a cause of action are set forth at Public Health Law §2805-d, and are
not present here. SeeKnapp v State of New York, UID#2006-028-011,
Claim No. 106438 (Sise, P.J., April 13, 2006), citingBenfer v
Sachs, 3 AD3d 781,782-783 (3d Dept 2004); Jolly v Russell, 203 AD2d 527,
528-529 (2d Dept 1994). The statute requires that a claimant show that the
medical practitioner failed to disclose alternatives and the risks associated
with stated alternatives for a proposed course of treatment. A
“reasonableness” standard is imposed, in that the initial question
is what would the reasonable professional advise as to the “reasonably
foreseeable risks and benefits . . .” to a proposed course of treatment.
[Public Health Law §2805-d(1)]. A claimant must also establish that
“. . . a reasonably prudent person in the patient’s position would
not have undergone the treatment or diagnosis if he had been fully informed and
that the lack of informed consent is a proximate cause of the injury or
condition for which recovery is sought.” [Public Health Law §2805
-d(3)]. Even taking Claimant’s declarations at their face value that he
was somehow unaware of different courses of treatment and their consequences, he
has not established that a reasonably prudent person in his position would not
opt to go forward, or that his present condition was proximately caused by the
course of treatment, as opposed to, for example, a disease process.
Additionally, from this record there is no indication that the actions of
medical caregivers amounted to simple negligence or ministerial neglect.
Coursen v New York University Hospital-Cornell Med. Center, supra;
Kagan v State of New York, supra. To the extent the claim can be
read to assert such theories, any cause of action for negligence or ministerial
neglect is also dismissed. The Defendant’s motion to dismiss for
failure to establish a prima facie case, upon which decision was reserved
at the time of trial, is hereby granted, and Claim Number 107525 is dismissed in
its entirety. Let Judgment be entered accordingly.